Matter of Wen Zong Yu v. Hua Fan , 2021 NY Slip Op 03189 ( 2021 )

Matter of Wen Zong Yu v Hua Fan (2021 NY Slip Op 03189)

Matter of Wen Zong Yu v Hua Fan

2021 NY Slip Op 03189

Decided on May 19, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 19, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
MARK C. DILLON
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.

2020-00134
2020-05447
(Docket No. F-11481-08/19G)

[*1]In the Matter of Wen Zong Yu, appellant,

v

Hua Fan, respondent.

Wen Zong Yu, Flushing, NY, appellant pro se.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Queens County (Elizabeth L. Fassler, J.), dated November 19, 2019, and (2) an order of the same court dated July 6, 2020. The order dated November 19, 2019, denied the father's objections to an order of the same court (Solange N. Grey-Humphreys, S.M.) dated October 11, 2019, which, upon his failure to appear at a scheduled court date, dismissed the father's petition to modify a prior child support order without prejudice. The order dated July 6, 2020, denied the father's objections to an order of the same court (Sudeep Kaur, S.M.) dated January 8, 2020, which dismissed a petition by the father to modify a prior child support order with prejudice.

ORDERED that the orders dated November 19, 2019, and July 6, 2020, are affirmed, without costs or disbursements.

The underlying facts are set forth in our decision on a related appeal from an order dated July 24, 2019 (see Matter of Wen Zong Yu v Hua Fan, ___ AD3d ___ [Appellate Division Docket No. 2019-10034; decided herewith]).

In an order dated November 19, 2019, the Family Court properly denied the father's objections to the Support Magistrate's dismissal of his petition to modify a child support order for failure to appear at a scheduled court appearance. The proper procedure to challenge an order entered upon a default is to move to vacate the default and, if necessary, appeal from the denial of that motion (see Matter of Renner v Costigan, 125 AD3d 664).

In an order dated July 6, 2020, the Family Court properly denied the father's objection to the Support Magistrate's order dated January 8, 2020. Family Court Act § 439(e), inter alia, requires that a party filing written objections must serve a copy of the objections upon the opposing party and file proof of service with the court at the time the objections are filed. Here, there is no evidence in the record that the father served the mother with a copy of the objections. As such, the father "failed to fulfill a condition precedent to the filing of timely written objections and, thus, failed to exhaust the Family Court procedure for review of [his] objections" (Matter of Michael H. v Kristen L., 179 AD3d 1065, 1067).

RIVERA, J.P., DILLON, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court